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Judgment
A.N. Venugopala Gowda, J.—Petitioner is the plaintiff and the respondents are the defendants in O.S. No. 5541/2008 on the file of City Civil Court, Bangalore. Suit was filed on 18.08.2008 to pass a judgment and decree of declaration that the alleged will dated 19.06.1999 is not a genuine document executed by G. Rangappa out of his own free will in favour of defendants 1 and 2 and for declaring the plaintiff as absolute owner of the suit property with a direction to the defendants 1 and 2 to put the plaintiff in vacant possession of the suit property and to order an enquiry under Order 20 Rule 12 of CPC for ascertaining the mesne profits and for directing the 3rd defendant to treat the plaintiff as landlord and pay future rent and for grant of consequential reliefs. Defendants 1 and 2 have filed common written statement and defendant 3 has filed separate written statement. Based on the pleadings, issues have been raised on 08.09.2010. Defendants 1 and 2 filed I.A. II under Order 14 Rule 5 of CPC to delete issue No. 4 and for framing an additional issue. Plaintiff filed I.A. III under Order 14 Rule 5 of CPC, for deletion of issue No. 2 in view of existing issue No. 4. Learned Trial Judge considering I.As. II and III has passed a common order on 10.02.2011. I.A. II filed by the defendants 1 and 2 was allowed and I.A. III filed by the plaintiff was dismissed. Assailing the order passed on I.A. II, this writ petition has been filed. Heard learned advocates on both the sides. Perused the writ record.
The following issues were raised by the learned Trail Judge on 08.02.2010:
Whether plaintiff proves that he is absolute owner of the suit schedule property?
Whether the plaintiff proves that the defendants 1 and 2 have forged the signatures of G. Rangappa and created a will and as such it is null and void?
Whether the plaintiff is entitled for the reliefs?
Whether the defendants 1 and 2 prove that the will executed by G. Rangappa is a valid Will?
Whether the Court fee paid is sufficient?
Whether the suit is in time?
What order or decree?
Defendants 1 and 2 have claimed the suit property based on a will executed by G. Rangappa. After the death of G. Rangappa, defendants 1 and 2 have got the will registered. Plaintiff is the brother of G. Rangappa.
The Trial Court by noticing that, in the plaint there is an allegation that the will is not a genuine document and signatures found therein are not genuine signatures of G. Rangappa and his signatures have been allegedly obtained under threat, undue influence, coercion and by playing fraud, has opined that in view of rising of issue No. 2, issue No. 4 is superfluous and does not survive for consideration and as a consequence ordered for deletion of issue No. 4.
The legal principles in regard to proof of a will are well settled. Will has to be proved having regard to the provisions contained in clause (c) S. 63 of the Succession Act, 1925 and S. 68 of Evidence Act, 1872, in terms whereof the profounder of a will must prove its execution by examining one or more attesting witnesses.
Sri. Rama Murthy, learned advocate appearing for the respondent No. 1 submitted that the attestors of the will are alive and hence, it is not difficult for the defendants 1 and 2 to examine the attestors. When the validity of the will is challenged on the ground of fraud, coercion or undue influence, the burden of proof would be on the propounders.
In the case of Niranjan Umeshchandra Joshi Vs. Mrudula Jyoti Rao and Others, , the Apex Court has held as follows:-
The burden of proof that the will has been validly executed and is a genuine document is on the propounder. The propounder is also required to prove that the testator has signed the will and that he had put his signature out of his own free will having a sound disposition of mind and understood the nature and effect thereof. If sufficient evidence in this behalf is brought on record, the onus of the propounder may be held to have been discharged. But, the onus would be on the applicant to remove the suspicion by leading sufficient and cogent evidence if there exists any. In the case of proof of will, a signature of a testator alone would not prove the execution thereof, if his mind may appear to be very feeble and debilitated. However, if a defence of fraud, coercion or undue influence is raised, the burden would be on the caveator. (See Madhukar D. Shende Vs. Tarabai Aba Shedage, and Sridevi and Others Vs. Jayaraja Shetty and Others, ). Subject to above, proof of a will does not ordinarily differ from that of proving any other document.
There are several circumstances which would have been held to be described by this Court as suspicious circumstances:
(i) when a doubt is created in regard to the condition of mind of the testator despite his signature on the will;
(ii) when the disposition appears to be unnatural or wholly unfair in the light of the relevant circumstances;
(iii) where propounder himself takes prominent part in the execution of will which confers on him substantial benefit.
(See H. Venkatachala Iyengar Vs. B.N. Thimmajamma and Others, and Management Committee T.K. Ghosh''s Academy Vs. T.C. Palit and Others, ).
We may not delve deep into the decisions cited at the Bar as the question has recently been considered by this Court in B. Venkatamuni Vs. C.J. Ayodhya Ram Singh and Others, , wherein this Court has held that the court must satisfy its conscience as regards due execution of the will by the testator and the court would not refuse to probe deeper into the matter only because the signature of the propounder on the will is otherwise proved.
Keeping in view of the material assertions made in the plaint and the denials in the written statement of the defendants 1 and 2, both issue Nos. 2 and 4, do arise for determination. In my opinion, merely on account of existing issue No. 2, Issue No. 4 is not superfluous. Since Issue Nos. 2 and 4 do arise for consideration and determination, the learned Trial Judge is not justified in ordering deletion of issue No. 4. To the said extent, there is material irregularity on the part of the learned Trial Judge.
In the result, writ petition is allowed in part. The impugned order only to the extent of deletion of issue No. 4 raised on 08.09.2010 is quashed.
The Trial Court shall consider and determine the issue Nos. 2 and 4 together, while deciding the suit.
No costs.